Ming Li Wang and Comcare
[2012] AATA 242
•27 April 2012
[2012] AATA 242
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/2711
Re
Ming Li Wang
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 27 April 2012 Place Melbourne 1.The reviewable decision of Comcare made on 6 May 2010 is set aside.
2.In substitution it will be decided that in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay to Ms Wang compensation in respect of the injury, being Adjustment Disorder with Anxiety and depressed Mood, suffered by her on 16 March 2009.
........[sgd J W Constance]...............
Deputy President J W Constance
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14(1), 5A(1), 5B and 14 – reasonable administrative action taken in a reasonable manner – reasonable counselling action – lack of evidence that reasonable administrative action contributed to illness to a significant degree – decision set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14(1), 5A(1), 5B and 14
CASES
Comcare v Sahu-Khan [2007] FCA 15
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Wiegand v Comcare [2006] FCA 1620REASONS FOR DECISION
Tribunal: Deputy President J W Constance
Date: 27 April 2012
INTRODUCTION
Ms Wang is an Export Grants Auditor employed by the Australian Trade Commission.
In 2009 Ms Wang suffered Major Depression which, after treatment, became an Adjustment Disorder with Depressed Mood. Ms Wang has claimed compensation in respect of this injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare has rejected the claim and Ms Wang has applied to the Tribunal to review this decision.
For the reasons which follow Comcare’s decision will be set aside and it will be decided that Ms Wang is entitled to compensation in respect of the injury suffered by her.
BACKGROUND
Comcare agrees that the condition in respect of which Ms Wang makes her claim is a disease contributed to in a significant degree by her employment. I am satisfied that this is a proper concession on Comcare’s behalf.
Under the Act, an injury for which compensation is payable “does not include a disease … suffered as a result of reasonable administrative taken in a reasonable manner in respect of the employee’s employment.” [1] Comcare argues that Ms Wang’s condition was suffered in part as a result of the conduct of Ms Wang’s supervisor, Mr Parker, at a meeting with Ms Wang on 13 March 2009. It is argued further that Mr Parker’s action at this meeting was reasonable administrative action carried out in a reasonable manner in respect of Ms Wang’s employment.
[1] Subsection 5A(1).
There is a substantial evidence before me as to a number of events which took place in Ms Wang’s workplace from 2007 onwards and it is necessary to make some findings in relation to those events to provide the setting in which Ms Wang developed the condition from which she now suffers. However Comcare relies only on the action at the meeting of 13 March 2009 as being action which excludes Ms Wang’s condition from the description of a compensable injury.
LEGISLATION
Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In subsection 5A(1) the relevant definition of injury is as follows:
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B which reads:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
EVIDENCE AND FINDINGS OF FACT
Ms Wang’s evidence
Ms Wang gave evidence and provided a written statement as to the events which she alleges caused her condition. This statement is annexed to her Claim for Worker’s Compensation dated 18 May 2009.[2]
[2] Exhibit A1 pp.9-21.
The process of giving evidence was difficult for Ms Wang. I am satisfied, on the basis of the medical reports to which I will refer later in these reasons, that her difficulty arose from her illness. At times Ms Wang found it difficult to relate events in a logical and straight forward way and I am satisfied that at times her memory was affected by her distress in describing the events as she perceived them. Nevertheless I accept that Ms Wang was an honest witness who gave her evidence to the best of her recollection and who honestly held the beliefs she expressed.
I am satisfied that Ms Wang commenced employment by the Commission on 3 October 2005. For the first two years she enjoyed her work and received positive assessments from her employer.
On the basis of Ms Wang’s evidence I am satisfied that the incidents set out in the following seven paragraphs took place and that Ms Wang found these incidents to be stressful.
About September 2007 Mr Parker made a comment to Ms Wang which referred to English not being her first or second language and that applicants for grants were having difficulty in understanding her. Ms Wang perceived this comment as being sarcastic. It caused her such concern that she spoke to another manager about the incident.[3]
[3] Transcript 1.2.11 p.25.
Sometime in 2008 Ms Wang and Mr Parker attended a meeting with a number of consultants and an applicant for an export grant. During that meeting the applicant became angry and pointed at Ms Wang and raised his voice. Ms Wang perceived that Mr Parker did not support her in this situation, although he did say to her afterwards that she handled the situation very well.[4]
[4] Transcript 1.2.11 pp.26-27.
In the latter half of 2008, during an audit process, Ms Wang perceived that a consultant was trying to intimidate her in relation to a claim for re-imbursement of expenses. In a later conversation concerning this matter Mr Parker told Ms Wang not to check expenses when conducting a telephone audit. Ms Wang asked Mr Parker to confirm this advice by email. Mr Parker did not do so. Ms Wang says that later Mr Parker said that she should check expenses.[5]
[5] Transcript 1.2.11 pp.27-31.
In 2008 Ms Wang and Mr Parker attended a meeting with two consultants. Ms Wang formed the opinion that Mr Parker did not support her opinions as to expenses the applicant was entitled to claim. Later Ms Wang believed she was under pressure from her approval officer to change her assessment. Ms Wang maintained that her assessment was correct. Subsequently the consultant involved made a complaint against Ms Wang. Ms Wang’s supervisor told her that she had done a good job.[6]
[6] Transcript 1.2.11 pp.31-35.
There were other occasions in 2008 when complaints were made about Ms Wang by Applicants. Ms Wang formed the opinion that these complaints were by “unhappy customers” caused by her carrying out correct audit procedures.[7]
[7] Transcript 1.2.11 pp.35-36.
In mid-2008 Mr Parker carried out a review of Ms Wang’s performance as part of the Commission’s standard management procedures. In response to Ms Wang’s advising Mr Parker that she needed additional support when dealing with difficult applicants and consultants, Mr Parker stated in the review report that Ms Wang should be accompanied by a senior auditor on at least eight audits. When Ms Wang asked senior auditors to accompany her they told her that they had not been told why this was necessary. Other staff mimicked her requests. She felt very humiliated by this process. When Ms Wang spoke to Mr Parker concerning this he appeared to have forgotten what he had written in her review. At the end-of-year review Mr Parker praised Ms Wang’s performance. Ms Wang perceived the review process to be “power abuse.” [8]
[8] Transcript 1.2.11 pp.37-39.
Prior to 13 April 2009 Ms Wang believed that she had been allocated an unfair share of files requiring urgent attention.[9]
[9] Transcript 1.2.11 pp.46-47.
On 13 April 2009 Ms Wang and Ms Parker met. Ms Wang says that during the meeting there was a conversation to the following effect:
Mr Parker: I’m formally informing you I’m unhappy with your performance.
Ms Wang: How is my performance been mentioned?
Mr Parker: It depend on the complaint, the complaint.
Ms Wang: How can I come to those – no basis [for] complaint.
Mr Parker: Yes, I know, you are targeted by the consultant.
Do you want to work for Austrade?
Ms Wang: Yes, of course. I love my job.
Mr Parker:I’m not convinced. There must be some days you don’t want to turn up for work?
Ms Wang:No, I love my job. [10]
[10] Transcript 1.2.11 pp.42-43.
At the very end of the statement which formed part of her claim [11] Ms Wang referred to this meeting in the following terms:
Even on 13 Mar 2009 my Manager said “we knew you had been targeted by EMDG consultants.” Yet my performance would be measured based on whether there were any complaints. That put extreme pressure on me and I feel much stressed. Ms Gamin’s evidence.
[11] Exhibit A1 pp.22-24.
Ms Gamin’s evidence
Ms Gamin gave evidence and provided a statement dated 13 December 2010.[12] Ms Gamin impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence.
[12] Exhibit R3.
Since April 2006 Ms Gamin has been the National Manager, Operations, employed by the Commission. During that time she has managed the administration of the Export Market Development Grant audit and investigation section. The State Managers report to her regarding staffing issues and she manages complaints that are referred to her by the State Managers.
Ms Gamin first became aware of Ms Wang when she reviewed Ms Wang’s contract in July 2006. In July 2007 Mr Parker informed Ms Gamin that “he was impressed with [Ms Wang’s] output and that she was a high performer in the section.”[13]
[13] Exhibit R3 para. 2.
On 18 February 2009 Ms Gamin met with Mr Wilson and Mr Wan, Senior Grant Auditors, and Mr Parker and discussed Ms Wang’s performance and the extent of the support being provided to her. At that meeting Ms Gamin asked Mr Parker to advise Ms Wang “that if she could not change her approach in the future and adopt the proper and required approach to audits, her performance management process would need to become formal.”[14]
[14] Exhibit R3, para. 15.
Ms Gamin gave evidence of her ongoing dealings with Ms Wang and her role in managing the manner in which Ms Wang carried out her duties. Further Ms Gamin said in her statement:
I believe David is a very competent manager and ensures that matters, including complaints, are dealt with in a timely fashion. David doesn’t worry about receiving criticism from clients and consultants and would address issues himself without laying the blame on others. In his management of the Applicant, as far as I observed, he never blamed her for the complaints; he just focussed on the facts of the situation and dealt with them appropriately.[15]
[15] Exhibit R3 para. 15.
On the basis of Ms Gamin’s evidence I am satisfied that all action taken by her in relation to Ms Wang’s performance was appropriate.
Mr Parker’s evidence
Mr Parker gave evidence and provided a statement dated 13 December 2010[16]. He gave evidence that to the best of his knowledge the contents of his statement were true.
[16] Exhibit R2.
I am satisfied that Mr Parker was an honest and reliable witness. He gave his evidence carefully and was prepared to admit at times that he did not recall details of events which happened some years ago. Where his evidence conflicts with that of Ms Wang I prefer his evidence. This is not because I believe that Ms Wang did not give her evidence to the best of her ability. For the reasons I have given I do not accept that Ms Wang’s recollection of events was always reliable.
Part of Mr Parker’s evidence was as follows:
10. Informal counselling of the Applicant commenced in October 2008, when more complaints came in regarding her conduct and style of audits. I personally visited a number of the complainants to investigate the complaints. I considered that most of the complaints were well-founded and were based on the Applicant’s failure to listen to clients, give them an opportunity to present their case, and/or the fact she sought an enormous amounts (sic) of information, far beyond what was considered reasonable. I then discussed with the Applicant my findings and demonstrated to her how audits should be done. I was accompanied by Steve Giles, our Special Investigator who examines potential fraud cases, on some of these visits, who also counselled the Applicant on how an effective audit needs to be undertaken. I gave the Applicant a framework to follow and placed time limits on the audits in an attempt to modify her behaviour.
11. I sent the Applicant an email on 29 October 2008 …[Exhibit A1 pp.93-94] providing advice on dealing with clients including that she must deal sensitively with questions about the viability of the businesses and that she should not raise her voice during the assessments. …
12. The Applicant responded by email dated 6 November 2008 … [Exhibit A1 p.95] and expressed concern about a number of issues including not checking expense items for a phone audit. …
…
16. On 11 March 2009, I received an email from Paul Wan … [Exhibit A1 p.133]. After attending a number of audits with the Applicant, he remarked that the Applicant was still taking too long on her audits, was not professional enough in her approach to the client and not seeking to develop a rapport or learn about the client and their business. Paul stated that he told the Applicant that she needed to start performing her job in a manner that EMDG required it to be done if she is to have a long term career with the ATC.
17. I conducted a meeting with the Applicant on 13 March 2009 to assess the current situation regarding performance and to set in place a clear strategy to address those issues. I advised the Applicant that the situation needed to improve or further action would be taken. At this stage, the performance management process was still regarded as informal. We discussed several areas in which the Applicant needed to show improvement, including limiting the time of telephone and in-person assessments, focussing only on material items, and accepting statements on face value, particularly when coming from an experienced and honest exporter.
18. I advised her that she was to be accompanied on all of her visits to ensure that she continued to receive support to meet the standards required. We were to review the situation again in a month, however, the Applicant went on sick leave shortly after the meeting and did not return to work. [17]
I accept this evidence.
[17] Exhibit R2.
Health professional evidence and opinion
Neither party called any oral evidence from any of the health professionals who have treated and/or assessed Ms Wang.
Report of Dr Chiang, General Practitioner
Dr Chiang has been Ms Wang’s general practitioner for several years. He provided a report dated 2 August 2009.[18]
[18] Exhibit A1 pp.71-73.
In his report Dr Chiang stated, in part:
She has been a patient at my clinic for quite a few years, although the current problem, which is work-related mental trauma, only became apparent very recently.
I was first made aware of her mental trauma when the patient came to see me on the 16/3/2009. She informed me that there had been problem (sic) with her manager, who apparently has been ‘picking on’ the patient. I understand that Ms Wang had found out a few ? fraud (sic) and irregularities while working to check clients’ accounts. Apparently some consultants have been hence unhappy and complained about her. As a result the patient was given a warning after a few arguments which occurred between Ms. Wang and the manager. Naturally the patient was very upset and came for help after feeling really depressed.
…
The specific diagnosis of Ms. Wang is that of Depression and mental trauma due to work-related stress/pressure.
…
I believe the patient developed the above-mentioned problem only very recently, viz early this year. … the patient did not report, or indeed experience any problem until early this year.
…
Again I am quite confident that the problem Ms. Wang is currently suffering is purely and simple due to work-related stress. There is no pre-existing factors to indicate otherwise.
…
As mentioned above I must again emphasise the fact that the only contributing factor is the stress/pressure that Ms. Wang’s employer/manager appears to have put on her.
Report of Mr Foenander, Clinical Psychologist
Mr Foenander has been treating Ms Wang on referral by Dr Chiang. Ms Wang first consulted him on 31 March 2009. He provided a report dated 25 July 2009.[19]
[19] Exhibit A1 pp.51-56.
Mr Foenander reported in part:
She reported a history of work related stressors which she alleges have occurred over the past two years:
…
Opinion
Current Illness: Ms. Wang is currently suffering from an Adjustment Disorder With Mixed Anxiety and Depressed Mood in an Obsessional Personality, sufficient to warrant anti-depressant medication, and on-going medical and psychological treatment.
…
Her employment seems to have been a significant contributing factor to her current illness in that it seems to have arisen from an (sic) history of alleged work stressors during the course of her current employment. There is no past psychological history to account for her current illness.
Report of Dr Sheehan, Consultant Psychiatrist
Dr Sheehan assessed Ms Wang on 18 August 2009 at the request of Comcare. He provided a report dated 27 August 2009.[20]
[20] Exhibit A1 pp.75-82.
Dr Sheehan reported in part:
Ms Wang reported a history of work related stress dating back over the last two years since a new boss was appointed.
…
Mental state examination
…
She was preoccupied in describing workplace stressors, alleging that she had been subject to unfair treatment, harassment, with themes of aggrievement and injustice.
…
Diagnosis
Adjustment Disorder with Depressed and Anxious Mood – DSM-IV coding 309.28.
Summary and assessment
It is difficult to be precise as to when the initial symptoms became clinically significant, but this appears to have occurred in March 2009.
…
There is no history of pre-existing or underlying conditions suffered by Ms Wang.
…
Employment Relationship
In your opinion, what are the main factors (both employment related and non-employment related) which have contributed to Ms Wang’s claimed medical condition?
Please specify what you consider these factors to be and the relationship these factors have with his claimed condition, (please provide specific details in respect of each of the relevant factors)
Ms Wang was unable to give a precise history. She was very agitated during the interview. I note the report by Mr Foenander indicates a number of work stressors which appear to be a significant contributing factor to her current illness. In particular, Ms Wang alleges harassment, lack of support, undermining by her immediate superior, and unfair assessment of her performance.
Please specify when the factor(s) first contributed to Miss Wang’s condition.
Ms Wang reports a gradual build up since 2007. The accompanying documentation indicates that Ms Wang’s symptoms became clinically significant by March 2009.
Report of Dr White, Consultant Psychiatrist
Dr White assessed Ms Wang on 4 March 2010 at the request of Comcare. He provided a report dated 10 March 2010.[21]
[21] Exhibit A1, supplementary documents pp.37-41.
Dr White reported in part:
Ms Wang is a 51 year old accountant/grants auditor who appears to be suffering from a Major Depressive Episode precipitated and maintained to a significant degree by her beliefs that she has been unfairly dealt with in her workplace.
ISSUES FOR DETERMINATION
It is not in contention that the mental condition from which Ms Wang suffers was contributed to, in a significant degree, by her employment by the Commission. It follows that she suffers a disease within the meaning of section 5B of the Act.
Injury is defined in section 5A. An injury becomes compensable under the Act if it meets the requirements of section 14. Other than determining whether Ms Wang suffered an injury, the requirements of section 14 are not in issue.
As Comcare agrees that Ms Wang has suffered a disease, the only question remaining for determination is whether the disease was “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. If it was, it is a disease which is excluded from the definition of injury in subsection 5A(1) and is not compensable.
Comcare argues that, in accordance with subsection 5A(1):
(a)the action of Mr Parker during his meeting with Ms Wang on 13 March 2009 was “reasonable administrative action taken in a reasonable manner in respect of [Ms Wang’s] employment”; and
(b)the disease suffered by her was suffered “as a result of” this action.
The following issues require determination.
(1)Was the action of Mr Parker in conducting the meeting with Ms Wang on 13 March 2009 reasonable administrative action taken in respect of Ms Wang’s employment?
(2)If so, was it taken in a reasonable manner?
(3)If so, was the disease suffered by Ms Wang suffered as a result of this action?
REASONING
Issue 1: Was the action of Mr Parker in conducting the meeting with Ms Wang on 13 March 2009 reasonable administrative action taken in respect of Ms Wang’s employment?
In Commonwealth Bank of Australia v Reeve[22] the Full Court of the Federal Court said in part:
The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment … Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).
[22] [2012] FCAFC 21 at paras. 60 and 62.
Counsel for Comcare argued that in deciding whether the action was reasonable administrative action I should consider the events leading up to it as providing the context in which this action took place. In particular Counsel referred me to the email from Mr Parker to Ms Wang sent on 29 October 2008 and the instructions given by Ms Gamin to Mr Parker on 18 February 2009. I accept this argument. In reaching my conclusion I have considered the action of Mr Parker in this context.
The discussion on 13 March 2009 concerned Ms Wang’s performance of her duties as an auditor and changes in her performance required by her employer. It is the evidence of all witnesses (including Ms Wang) that there had been a number of complaints about Ms Wang’s performance by both applicants and consultants and it was reasonable for the Commission to address these complaints and to counsel Ms Wang to perform her duties in the manner it required. Such action comes within subsection 5A(2)(b) which provides that “reasonable administrative action is taken to include … a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment”.
I am satisfied that Mr Parker’s action on 13 March 2009 was reasonable administrative action taken in respect of Ms Wang’s employment. I base this finding on the evidence of Mr Parker as to what was discussed at the meeting and the evidence of Ms Gamin and Mr Parker as to the events leading up to it.
Issue 2: Was the reasonable administrative action taken in a reasonable manner?
On the basis of the evidence of Mr Parker as to the events leading up to the meeting, including the information he received from Mr Wan in the email of 11 March 2009, I am satisfied that the meeting with Ms Wang was a reasonable manner of taking the counselling action deemed necessary by Mr Parker on behalf of the Commission.
I have taken into account also the evidence of Ms Gamin as to the competency of Mr Parker and the manner in which he performed his duties.[23]
[23] Exhibit R3.
Ms Wang has argued that I should find that the action taken in respect of her employment was bullying. I do not make such a finding. There is nothing in the evidence before me to suggest that Ms Wang was bullied at any time during her employment by the Commission.
Issue 3: Was the disease suffered by Ms Wang suffered as a result of the reasonable administrative action?
The exclusionary provision of the definition of injury in subsection 5A(1) refers to a “disease, injury or aggravation suffered as a result of reasonable administrative action…” (emphasis added). This subsection does not include the requirement that the contribution of the reasonable administrative action be to a “significant degree”. However there is nothing in the Act which suggests that it was the intention of Parliament that an employee be required to show that the events relied upon to base a finding that his or her employment contributed to a disease to a significant degree, but that Comcare could then rely upon conduct to activate the exclusionary provision of subsection 5A(1) without that conduct being required to meet the same standard, i.e. that the reasonable administrative action contributed to the disease, injury or aggravation to a significant degree.
An interpretation which permits the exclusion to operate when the action relied upon is not shown to contribute to the disease to a significant degree would not be logical and would be an interpretation inconsistent with the beneficial nature of the legislation.
A consideration of decisions of the Federal Court supports the interpretation I have decided upon. In Hart v Comcare [24] the Full Court considered the definitions of injury and disease prior to the present definitions being inserted in 2007.[25] The 2007 amendments were not significant for the purposes of this discussion, other than the contribution of the excluded action was required to be “material” rather than” significant”. The Full Court held that once it was concluded that the disease or injury was suffered as a result of excluded action it followed that the disease or injury was not an “injury” as defined, “irrespective of the other so-called operative and ‘non-excluded’ causes.” [26] However the Full Court made it clear that this conclusion was based on the factual finding that “the failure to obtain the promotions materially contributed to the adjustment disorder for which compensation was claimed …” [27] (emphasis added).
Later the Full Court said:
It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion. [28] (Emphasis added).
[24] [2005] FCAFC 16.
[25] Act No. 54 of 2007.
[26] Paras 18-19.
[27] Para. 18.
[28] Para.23.
In Wiegand v Comcare [29] Finn J. considered the degree of contribution necessary in deciding whether the disease suffered by Mr Weigand was a result of a failure to be promoted and/or a failure to obtain requested leave. His Honour held that the degree of contribution required was the same as he had set out in an earlier decision of Comcare v Sahu-Khan[30]. The latter decision dealt with the degree of contribution imposed by the adjective “material” in the definition of disease.
[29] [2006] FCA 1620.
[30] [2007] FCA 15.
I have considered this issue in some detail as the outcome of Ms Wang’s application depends upon the correct interpretation of the exclusionary provisions in subsection 5A(1) and their application to the evidence of the medical practitioners and the psychologist available to me. I am satisfied on the basis of the experts’ evidence that the reasonable administrative action I have determined contributed to the disease suffered by Ms Wang. However I am not satisfied that it contributed to a significant degree.
Mr Foenander expressed the opinion that Ms Wang’s employment was a significant contributing factor to her current illness. He refers to the meeting in his “History of Presenting Problems” but there is nothing in the report which provides a basis for a decision that the events of the meeting made a contribution to a significant degree.
Dr Sheehan is of the view that Ms Wang’s symptoms appear to have become clinically significant in March 2009, but he said that it is difficult to be precise as to this. Again there is nothing in his report as to the degree to which the March meeting contributed to the condition.
In his report of 2 August 2009, Dr Chiang expressed the opinion that Ms Wang “developed [depression and mental trauma] only very recently, viz. early this year.”[31] He does not express an opinion as to the contribution of the events of 13 March 2009.
[31] Exhibit A1 p.72.
Dr White does not provide any assistance in relation to the degree of contribution on any particular event or events.
All of the practitioners express the opinion that Ms Wang’s condition was wholly contributed to by her employment and I am satisfied that this is correct.
I have considered also the evidence (including the statements) of Ms Wang to ascertain if it contained any indication of the degree of contribution made by the meeting with Mr Parker. As I have found, the claim form records the date of injury or of first noticing symptoms as “16/3/09 over a period of time. Recent events happened over past months.”[32] In the statement accompanying the claim Ms Wang does not refer to the meeting until the very end of the statement. Although Ms Wang refers to the meeting as having put “extreme pressure” on her and her feeling “much stressed”, I do not accept this as evidence sufficient to make the necessary finding. Ms Wang is not qualified to express an opinion as to the degree of contribution of this single event.
[32] Exhibit A1 p.10.
Although during the hearing Comcare concentrated on the events of the March meeting as the exclusionary action, I note that in its Statement of Facts and Contentions dated 15 December 2010 Comcare contended that “the claimed injury was significantly contributed to by other reasonable administrative action taken in a reasonable manner, namely the management of the Applicant’s performance by the ATC.” [33]
[33] Para. 4.3.
I have considered the various actions taken by the Commission in relation to Ms Wang’s employment in the years leading up to the events of March 2009. I am satisfied that a number of those events are properly classified as “reasonable administrative action taken in a reasonable manner”. However there is nothing in any of the evidence of the health professionals to enable me to find that any one or more of these events made a significant contribution to the claimed injury.
CONCLUSION
The reviewable decision of Comcare made on 6 May 2010 will be set aside.
In substitution it will be decided that in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay to Ms Wang compensation in respect of the injury, being Adjustment Disorder with Anxiety and depressed Mood, suffered by her on 16 March 2009.
I certify that the preceding 67 (sixty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.........[sgd]...............................................................
Personal Assistant
Dated 27 April 2012
Dates of hearing 1 and 2 February 2011; 28 and 29 February 2012; and 1 March 2012 Applicant In person Counsel for the Respondent Mr B Dubé Solicitors for the Respondent Mr A Shelley, Sparke Helmore
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